GERALD ASKOWITZ, APPELLANT,
v.
SUSAN FEUER INTERIOR DESIGN, INC., APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
This appeal addresses whether a trial court properly enhanced attorney's fees with a contingency risk multiplier in a contract dispute over interior design services. The court affirms the base lodestar fee but reverses the multiplier enhancement, holding that no evidentiary basis supported the upward adjustment in this ordinary commercial contract case.
The court affirms the lodestar fee of $9,750 (15 hours at $150/hour for the main claim plus 50 hours at $150/hour for counterclaim defense) but reverses the contingency risk multiplier enhancement. The court holds that no evidentiary basis supports applying the multiplier in this case because: (1) the parties are both solvent; (2) the case involves an ordinary commercial contract dispute; (3) there was little risk to counsel; (4) the litigation produced no substantial public benefit; and (5) the prevailing party could afford competent counsel without the enhancement.
[1] A contingency risk multiplier may be applied in contract cases only if it is required in the relevant market to attract competent counsel and the attorney was unable to m…
[2] The lodestar fee, calculated by multiplying reasonable hours by a reasonable hourly rate, is properly awarded even if it exceeds a percentage of the recovery agreed upon…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In contract cases a multiplier may be applied where (1) it is required in the relevant market to attract competent counsel, and (2) the attorney was unable to mitigate the risk of nonpayment in any way.”
Establishes the two-prong test for applying a contingency risk multiplier in Florida contract cases.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSusan Feuer Interior Design sued Gerald Askowitz for payment for interior decorating services totaling $6,408.58. Askowitz filed a counterclaim allegi…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Lodestar Fee cases and more on FLexlaw
FERGUSON, Judge.
The main issue in this appeal is a challenge to the application of the contingency risk multiplier to enhance the fee for prosecuting a small collection claim and defending a counterclaim based on the same contract where the defendant was the successful party on the counterclaim. We affirm the lodestar fee awarded to the plaintiff on the original claim and for defense of the counterclaim, and reverse the fee enhancement. Susan Feuer Interior Design, Inc., commenced this action in the county court against Gerald Askowitz, an optometrist, seeking money owed plus interest for interior decorating services. Dr. Askowitz filed a counterclaim alleging negligent and incomplete performance of services under the contract. Because the damages sought in the counterclaim were in excess of $60,-000, the case was transferred to the circuit court where it was presided over by the same judge, acting as a circuit judge on administrative order, to whom it had been assigned in the county court.
A partial summary judgment was entered for the design firm awarding it $6,408.58, inclusive of interest, for goods sold and delivered. Dr. Askowitz was awarded $400 on his counterclaim which was offset against the plaintiff’s judgment. At the post-judgment hearing on fees the trial court ruled that Susan Feuer, Inc. was the only prevailing party for the purpose of awarding attorney’s fees pursuant to the parties’ contract, and assessed the amount at $18,375.
Askowitz contends in this appeal that (1) notwithstanding that the fee was contingent upon the plaintiff prevailing the award should be limited to forty percent of the net recovery, as was agreed to between the design firm and its attorney by terms of a contract, and (2) the court improperly enhanced the lodestar with a contingency risk multiplier — on the main claim and the counterclaim — resulting in an excessive fee award. We consider first the contingency risk multiplier. As a basis for enhancing the fee the court found generally that the multiplier was necessary because of the “subject matter of the litigation” and “in order to attract competent counsel within the bar”, citing this court’s opinions in Travelers In-dem. Co. v. Sotolongo, 513 So. 2d 1384 (Fla. 3d DCA 1987) and Bankers Ins. Co. v. Gonzalez, 545 So. 2d 907 (Fla. 3d DCA 1989). The trial judge then made separate determinations on the claim and counterclaim, applying different contingency risk multipliers to each. As to the plaintiff’s claim the court adjudged:
1. The reasonable and necessary number of hours expended by Plaintiff’s counsel is 15.
2. A reasonable hourly fee for Plaintiff’s counsel in this matter is $150.00.
3. The lodestar figure to be applied in this matter is $2,250.00.
4. A contingency risk multiplier of 1.5 is utilized by the Court as there was a likelihood of success more likely than not.
On the counterclaim the court ruled:
5. The reasonable and necessary number of hours expended by Plaintiff’s counsel in this matter is 50.
6. A reasonable hourly fee for Plaintiff’s counsel in this matter is $150.00.
7. The lodestar figure to be applied in this matter is $7,500.00.
8. A contingency risk multiplier of 2 is utilized by the Court as the likelihood of success was approximately even at the outset.
Appellant invites us to examine the factors considered by the trial court in its upward adjustment of the lodestar fee. First, the case commenced as an ordinary small claim contract action, of the type which floods the county court system, to collect for goods and professional services rendered. An obligation to pay a fee in the event of an action to enforce the agreement is a standard feature of such sales contracts. The counterclaim, too, was a rather run-of-the-mill ploy to avoid payment which alleged that the services were poor and the goods defective, concluding with a mostly baseless damage claim. Indeed, no contention was made, and the court did not find, that the case was complex in any sense. Further, as the court found, there was little risk at all to counsel on the plaintiff’s claim as there was no dispute that some services had been rendered and that valuable goods had been supplied to the defendant.
Defense of the counterclaim, although time-consuming, carried little risk of subsuming the original claim. For that reason the risk of no attorney’s fees on the counterclaim was no greater than the risk of not prevailing on the plaintiffs claim. We held in Erickson Enterprises Inc. v. Louis Wohl & Sons, Inc., 422 So. 2d 1085 (Fla. 3d DCA 1982), that where a plaintiff, in order to prevail in an action where the contract sued upon provides for attorney’s fees, is required to defend a counterclaim based on the same contract, defense of the counterclaim is part and parcel of the original action and the plaintiff is entitled to a reasonable fee for defending the counterclaim as well.1
We note, at the outset, that the application of a multiplier is not mandatory when the prevailing party’s counsel is employed on a contingency fee basis. Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla.1990), approving Travelers Indem. Co. v. Sotolongo. In contract cases a multiplier may be applied where (1) it is required in the relevant market to attract competent counsel, and (2) the attorney was unable to mitigate the risk of nonpayment in any way. Id. Here the fee applicant is an obviously solvent corporation, which has prevailed against an obviously solvent optometrist, in an action on a private commercial contract. The litigation resulted in no substantial benefit to society, and neither is there any evidence in the record that the prevailing party would otherwise have been unable to afford competent counsel. Consideration of the additional standards enunciated in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985), lends little support to the enhancement since the lodestar figure represents the market rate, and is considerably more than what was provided for by the private arrangement between the prevailing party and its attorney. In conclusion, there is no evidentiary basis for applying the contingency risk multiplier. The lodestar fee of $9,750, based upon the reasonable hourly rate multiplied by the number of hours expended, as specified in the order, was properly awarded, even though it is more than the “40% of the recovery” amount agreed to by the parties as an alternative basis for fixing the fee amount. Financial Services Inc. v. Sheehan, 537 So. 2d 1111 (Fla. 3d DCA 1989).
Affirmed in part, reversed in part and remanded.
. In Erickson the plaintiff prevailed on both its original claim and the defendant’s counterclaim. That case does not answer, and this case does not present, a related question: Whether a defendant whose counterclaim is meritorious and whose recovery is substantial, is entitled to a reasonable attorney’s fee award where the plaintiff is, monetarily, a net prevailing party.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
-
Sarkis v. Allstate Ins. Co., 863 So. 2d 210 (Fla. 2003)…nt requirement. In writing for the court, Judge Schwartz stated: “[Tjhere [is no] evidence in the record that the prevailing party would have been unable to obtain competent counsel.” Id. at 64 (quoting Askowitz v. Susan Feuer Interior Design, Inc., 563 So. 2d 752, 754 (Fla. 3d DCA 1990)). Judge Schwartz further questioned [w]hether any such showing can ever be made, and thus whether a multiplier is ever appropriate when fees are awarda-ble only when a reasonable offer is not accepted under § 768.79, an even…
-
Bell v. U.S.B. Acquisition Co., Inc., 734 So. 2d 403 (Fla. 1999)…s of Appeal have upheld the consideration of contingency multipliers in contract cases, relying on our decisions in Rowe or Quanstrom. See, e.g., Stack v. Lewis, 641 So. 2d 969, 970 (Fla. 1st DCA 1994); Askowitz v. Susan Feuer Interior Design, Inc., 563 So. 2d 752, 754 (Fla. 3d DCA 1990); Freedom Sav. & Loan Ass’n v. Biltmore Constr. Co., 510 So. 2d 1141, 1142 (Fla. 2d DCA 1987); see also Hollub v. Clancy, 706 So. 2d 16, 19 (Fla. 3d DCA 1997); cf. Florida Pottery Stores of Panama City, Inc. v. American Nat’l…
-
Gonzalez v. Angel Veloso, M.D., 731 So. 2d 63 (Fla. 3d DCA 1999)…“simply” of the stipulated lodestar fee of $69,000.00—which we note, was much more than the $59,096.39 contingency fee (45% of the recovery, of $131,325.33) to which the plaintiff and her lawyer agreed. Askowitz v. Susan Feuer Interior Design, Inc., 563 So. 2d 752 (Fla. 3d DCA 1990), review denied, 576 So. 2d 292 (Fla. 1991), is squarely on point: [T]here [is no] evidence in the record that the prevailing party would otherwise have been unable to afford competent counsel. Consideration of the additional stan…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990)
- Travelers Indem. Co. v. Sotolongo, 513 So. 2d 1384 (Fla. 3d DCA 1987)
- Erickson Enters., Inc. v. Louis Wohl & Sons, Inc., 422 So. 2d 1085 (Fla. 3d DCA 1982)
- Bankers Ins. Co. v. Valmore Gonzalez, 545 So. 2d 907 (Fla. 3d DCA 1989)
- Ford v. Ford, 537 So. 2d 1111 (Fla. 3d DCA 1989)
- Fin. Servs., Inc. v. Sheehan, 537 So. 2d 1111 (Fla. 3d DCA 1989)